Category: CPLR

"Interest under CPLR 5002 is a matter of right and is not dependent
upon the court's discretion or a specific demand for it in the
complaint'" (Matter of Goldberger v Fischer, 54 AD3d 955; quoting Matter of Kavares [Motor Veh. Acc. Indem Corp],
29 AD2d 68, 70-71). Thus, despite the appellant's contentions to the
contrary, the plaintiff was entitled to all prejudgment interest,
regardless of whether specifically provided for in the judgment of
foreclosure and sale entered in this action.

Moreover, "when a contract provides for interest to be paid at a specified rate until [*2]the
principal is paid, the contract rate of interest, rather than the legal
rate set forth in CPLR 5004, governs until payment of the principal or
until the contract is merged in a judgment" (Citibank, N.A. v Liebowitz, 110 AD2d 615, 615; accord European Am. Bank v Peddlers Pond Holding Corp., 185 AD2d 805, 805; Marine Mgt. Inc. v Seco Mgt.,
176 AD2d 252, 253). Here, the subject New York City tax lien
certificate provided specifically that the holder of the lien was
entitled to the principal balance plus "interest accruing theron at the
rate of eighteen percent (18%) per annum, compounded daily," and that
"[a]ccrued interest on the Tax Lien Principal Balance for each Tax Lien
is payable … until the Tax Lien Principal Balance is paid in full."
Accordingly, the contract rate, rather than the statutory rate,
governed the rate of interest until the entry of judgment (see European Am. Bank v Peddlers Pond Holding Corp., 185 AD2d 805, 805; Marine Mgt. v Seco Mgt., 176 AD2d 252, 253; affd 80 NY2d 886; Citibank, N.A. v Liebowitz, 110 AD2d 615, 615).

The Whitfield defendants did not interpose an answer in the instant
action, and by order of the Supreme Court, Nassau County (Feinman, J.),
dated November 5, 2007, the court granted that branch of a prior motion
of the plaintiff which was pursuant to CPLR 3215 for a default judgment
against them. By defaulting, the Whitfield defendants admitted the
allegations in the instant complaint and all reasonable inferences
therefrom, to wit, that the driver had borrowed the subject vehicle "to
visit friends in North Babylon, and was on his way home when the
accident occurred" and that at the time of the accident, he "was not
operating the [subject vehicle] in furtherance of the garage business" (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Matter of Gupta, 38 AD3d 445, 446; Lamm v Stevenson, 276 AD2d 531; Fleet Bank v Powerhouse Trading Corp., 267 AD2d 276, 277; see also Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Silberstein v Presbyterian Hosp. in City of N.Y., 96
AD2d 1096). Based on the foregoing, the plaintiff established, prima
facie, that the accident was not covered by the subject policy which
requires it to pay damages for bodily injury caused by an accident and
resulting from "garage operations" involving the ownership, maintenance
or use of a covered auto (see Singh v Allcity Ins. Co., 1 AD3d 501; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363; Dumblewski v ITT Hartford Ins. Group, 213 AD2d 823).

Since the plaintiff, as movant, demonstrated its prima facie
entitlement to summary judgment, the burden shifted to the respondents,
as opponents of the motion, to provide evidence, in proper admissible
form, sufficient to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49
NY2d 557, 562). The respondents failed to meet their burden since their
opposing papers consisted solely of the affirmation of counsel in which
hearsay statements of the Whitfield defendants were proffered to defeat
the motion (see Zuckerman v City of New York, 49 NY2d 557, 562; Collins v Laro Serv. Sys. of N.Y., Inc., 36 AD3d 746, 746-747; Salzano v Korba, 296 AD2d 393, 395; Heifets v Lefkowitz, 271 AD2d 490, 491; cf. Municipal Testing Lab., Inc. v Brom, 38 AD3d 862; Mazzola v City of New York, 32 AD3d 906; Orelli v Showbiz Pizza Time, 302 AD2d 440, 441; Ritts v Teslenko, 276 AD2d 768, 769; Dan's Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353, 354; Lukin v Bruce, 256 AD2d 388, 389; Gomes v Courtesy Bus Co., 251 AD2d 625, 626).

The defendants' contention that the trial court erred in allowing
testimony as to republication of Probst's defamatory statements by
Newsday is unpreserved for appellate review (see CPLR 5501; Firth v State of New York,
98 NY2d 365, 372). The defendants' contention that the trial court
erred in allowing testimony about an investigation of the plaintiff by
the District Attorney's office is without merit, as the evidence
demonstrated that the investigation was caused by Probst's own
defamatory statements (see Garrison v Sun Print & Publ. Assn.,
207 NY 1, 8). In addition, the trial court properly allowed testimony
about an out-of-court statement regarding the extent of the effect of
Probst's defamatory statements on the plaintiff's reputation, as the
testimony was not [*3]hearsay (see Gelpi v 37th Ave. Realty Corp., 281 AD2d 392).

A party who consents to a trial court's reduction of a damages
award is not aggrieved by the resulting judgment, and therefore is not
entitled to appeal from that judgment (see CPLR 5511; Zhagnay v Royal Realty Co.,
87 NY2d 954). Accordingly, the plaintiff's cross appeal must be
dismissed. However, the plaintiff may be afforded relief pursuant to
CPLR 5501(a)(5) (see Hecht v City of New York, 60 NY2d 57, 63, n; Papa v City of New York, 194 AD2d 527, 532; Donohoe v Foldner, 168 AD2d 412, 413).

In determining whether a jury's award of damages is excessive,
the court should consider whether the award "deviate[s] materially from
what would be reasonable compensation" (see CPLR 5501[c]; K. Capolino Constr. Corp. v White Plains Hous. Auth.,
275 AD2d 347, 349). Here, the Supreme Court properly determined that
the damage awards were excessive, and appropriately reduced the same to
the extent indicated.

The defendants' remaining contentions are either unpreserved for appellate review (see CPLR 5501; Firth v State of New York, 98 NY2d at 372), waived (see Santiago v RodrÍguez, 38 AD3d 639, 640), or without merit.

Although a municipality, in the first instance, has the right to
determine which of its officers or employees with knowledge of the
facts may appear for a deposition, a plaintiff may demand production of
additional witnesses when (1) the officers or employees already deposed
had insufficient knowledge or were otherwise inadequate, and (2) there
is a substantial likelihood that the person sought for deposition
possesses information which is material and necessary to the
prosecution of the case (see Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 933; Douglas v New York City Tr. Auth., 48 AD3d 615, 616; Sladowski-Casolaro v World Championship [*2]Wrestling, Inc., 47 AD3d 803, 804; Del Rosa v City of New York, 304
AD2d 786). The plaintiffs established that the witnesses produced by
the respondent for deposition had insufficient knowledge regarding the
making of a line-of-duty injury report which was material and necessary
to the prosecution of the action (see D & S Realty Dev., L.P. v Town of Huntington, 295 AD2d 306, 308; Harris v Town of Islip, 268 AD2d 459, 460-461; D'Ulisse v Town of Oyster Bay, 81
AD2d 825, 826). Furthermore, the employee the plaintiffs sought to
depose was the investigating officer who signed the line-of-duty injury
report and made the original records that were copied into the report (see CPLR
4518[a]). Accordingly, that branch of the plaintiffs' motion which was
to compel the respondent to produce the employee for a deposition
should have been granted.

The plaintiffs, however, failed to make a clear showing that
the respondent willfully and contumaciously defied the directive of the
preliminary conference order to produce all accident reports, or
willfully and contumaciously withheld relevant documents (see CPLR 3101[g]; Paca v City of New York, 51 AD3d 991, 993; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Briggs v Allstate Ins. Co., 1
AD3d 392, 393). Accordingly, that branch of the plaintiffs' motion
which was pursuant to CPLR 3126 to strike the respondent's answer was
properly denied.

Finally, we do not address the arguments raised by the defendant
Demetra Sirica in her brief denominated as a "respondent's" brief.
Since her brief contests the Supreme Court's denial of her individual
motions, she cannot appear here as respondent (see CPLR 5511). If, as she claims, [*3]she was not served with a notice of entry of the orders at issue, she "may still timely file a notice of appeal" (Nagin v Long Is. Sav. Bank, 94 AD2d 710, 710).

The appeal from the first order entered November 22, 2006, must
be dismissed as abandoned, as the appellant did not raise any arguments
relating to that order in its brief (see Andre v City of New York, 47 AD3d 605, 606).